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Info Service on Health Issues (Dec21/01) Geneva, 30 Nov (Nithin Ramakrishnan) — The intergovernmental negotiating body (INB) is to determine the nature of the new instrument on pandemic preparedness and response, i.e. whether this is to be a treaty or regulation or recommendation under the WHO Constitution. The Drafting Group on the outcome document of the World Health Assembly Special Session (WHASS) reached a consensus on 28 November, and the draft decision is titled “The World Together: Establishment of an intergovernmental negotiating body to strengthen pandemic prevention, preparedness and response” (draft decision). [Under the WHO Constitution, Member States can adopt a treaty (Article 19), regulation (Article 21), and recommendation (Article 23). Though all the three instruments are binding on Member States, treaties and regulations are considered on the same footing in terms of normative value. However, a treaty under Article 19 requires accession/ratification (opt in) while a regulation is binding on Member States without any such process and requires a deposit of document to opt out of the obligation.] WHASS is taking place from 29 November to 1 December at WHO Headquarters in Geneva in a hybrid mode and is expected to adopt the draft decision. [According to the WHA Decision 74(16) and the provisional agenda, WHASS is considering the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response taking into account the report of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR).] According to the draft decision, the INB will decide on the provision of the WHO Constitution under which the instrument should be adopted at the end of the second INB meeting (the first meeting on substantive issues), which will be held no later than 1 August 2022. Operative Paragraph 1(3) states: “(3) that as part of its working methods, the INB shall determine an inclusive Member State led process, to be facilitated by the co-chairs and vice-chairs, to first identify the substantive elements of the instrument and to then begin the development of a working draft to be presented, on the basis of progress achieved, for the consideration of the INB at its second meeting, to be held no later than 1 August 2022, at the end of which the INB will identify the provision of the WHO Constitution under which the instrument should be adopted in line with OP 1.1;” It is also decided that in determining the nature of the instrument, the INB should take into account the ongoing work of the WGPR, particularly with regard to implementation and strengthening of the International Health Regulations (IHR) (2005). Operative Paragraph 1(4) states: “that the process referred to in OP1.3 should be informed by evidence and should take into account the discussions and outcomes of the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies, considering the need for coherence and complementarity between the process of developing the new instrument and the ongoing work under resolution WHA 74.7, particularly with regard to implementation and strengthening of the IHR (2005);” During the drafting group meetings over the past weeks, there was an attempt by the European Union-led Friends of the Pandemic Treaty to change the consensus reached at the WGPR to determine the nature of the new instrument at a later stage after the identification of elements of the new instrument. This was, however, opposed by many other Member States because it would break the consensus formed in the WGPR. An initial draft decision circulated by Chile, one of the Friends of the Pandemic Treaty, along with the EU, had proposed that the INB will be established to adopt an Article 19 instrument. When this was opposed, the attempt in the last week ahead of the WHASS was to get a preference for an Article 19 instrument. Accordingly, Operative Paragraph 1(1) of the draft circulating at noon on 26 November stated the following: “(1) to establish, in accordance with Rule 41 of its Rules of Procedure, an intergovernmental negotiating body open to all Member States and Associate Members (the “INB”) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response, preferably under Article 19, or other options under the WHO Constitution as may be deemed appropriate by the INB;” However, this text was further diluted, to treat all forms of instruments on an equal footing. The consensus draft of 28 November removes this explicit preference for Article 19 instruments. It now reads as follows: “(1) to establish, in accordance with Rule 41 of its Rules of Procedure, an intergovernmental negotiating body open to all Member States and Associate Members (the “INB”) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response, with a view to adoption under Article 19, or under other provisions of the WHO Constitution as may be deemed appropriate by the INB;” Thus, reading Operative Paragraphs 1 and 3 together, the INB is to decide on the nature of the new instrument at its second meeting, which would be held not later than 1 August 2022, which in all probability is expected to take place after the 75th session of the World Health Assembly (WHA) in May 2022. However, there is no compulsion on the INB to decide on the nature of the instrument at its second meeting. As per Operative Paragraph 3, the second meeting of the INB is to “first identify the substantive elements of the instrument and to then begin the development of a working draft to be presented, on the basis of progress achieved, for the consideration of the INB at its second meeting, to be held no later than 1 August 2022, at the end of which the INB will identify the provision of the WHO Constitution under which the instrument should be adopted in line with OP 1.1”. Thus, the determination of the nature of the instrument can take place only after the consideration of the elements and the working draft. This means the INB is free to postpone this determination. Further, Operative Paragraph 1.4 makes it clear that the process mentioned under Operative Paragraph 1.3 should be informed by the evidence and also take into account the discussions and outcomes of the WGPR. In addition, the INB is expected to ensure complementarity and coherence between the process of developing a new instrument and the ongoing work of WGPR, particularly the strengthening of IHR (2005). Contrary to the consensus reflected in the draft decision, the European Union Delegation at the UN in Geneva has tweeted via its official news handle, that the Member States have agreed informally to start negotiations on the Pandemic Treaty. The Draft Decision also includes the following decisions: 1. The first meeting of the INB shall be held no later than 1 March 2022 to elect co-chairs and vice chairs and to adopt working methods and timelines. 2. The INB shall submit its outcome report in the 77th session of WHA in 2024, and an interim progress report to the 76th session of WHA in 2023. Thus, the current time-line for the conclusion of the negotiation of the new instrument is two years starting from 2022. The Draft Decision in Operative Paragraph 2 also requests the WHO Director-General: 1. To convene the INB’s first meeting by March 2021; 2. To hold public hearings prior to the second meeting of the INB; 3. To facilitate the participation of representatives of organizations of the United Nations system and other intergovernmental organizations with which WHO has established effective relations, Observers, representatives of non-State actors in official relations with WHO, and of other relevant stakeholders and experts, to the extent the INB so decides; 4. To provide the INB with the necessary services and facilities, including timely information and advice. Though the operative paragraphs part of the decision is silent on the “equity first” proposal of the developing countries, the preambular paragraphs prioritize the need for equity. Further, they stress that Member States should guide their efforts to develop such an instrument with the principle of solidarity with all people and countries, and should frame practical actions to deal with both causes and consequences of pandemics and other health emergencies. +
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